Citation Nr: 1241938
Decision Date: 12/07/12 Archive Date: 12/13/12
DOCKET NO. 06-24 353 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for degenerative disc disease of the lumbar spine, from November 9, 2009.
2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine, from November 9, 2009.
3. Entitlement to an effective date earlier than November 9, 2009, for the grant of service connection and the award of compensation for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine.
4. Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected degenerative disc disease of the lumbar spine and related bilateral lower extremity radiculopathy, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), prior to November 9, 2009.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Adamson, Counsel
INTRODUCTION
The Veteran served on active duty from May 1970 to September 1973, and from November 1973 to August 1976, with periods of service in the Army National Guard before and after these dates.
This appeal to the Board of Veterans' Appeals (Board) arose from a June 2005 rating decision in which the RO implemented the Board's award of service connection for a low back disability (recharacterized as degenerative disc disease of the lumbar spine), and assigned an initial, noncompensable rating, effective October 9, 2002 (the date of receipt of the Veteran's petition to reopen his claim for service connection). In July 2005, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A May 2006 statement of the case (SOC) was issued to the Veteran, which increased the Veteran's rating from noncompensable to 10 percent, effective October 9, 2002. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans Appeals) in July 2006.
In August 2008, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a copy of the transcript is of record.
In September 2008, the Board remanded the claim for a higher initial rating for degenerative disc disease to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional action, to include arranging for the Veteran to undergo VA examination.
In August 2010, the AMC awarded a higher rating of 30 percent for degenerative disc disease, effective November 9, 2009, and also assigned a separate 20 percent rating for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine, also effective November 9, 2009. A combined rating in excess of 40 percent for both disabilities from November 9, 2009 was denied (as reflected in an August 2010 supplemental SOC (SSOC)). The Veteran, by way of his representative's August 2010 statement, indicated his continued disagreement with the rating assigned, in particular, the combined 40 percent rating. Thus, the Board has found that the Veteran has effectively expressed dissatisfaction with the rating assigned for right lower extremity radiculopathy,
Accordingly, in December 2010, the Board characterized the appeal as encompassing the matter of a higher rating for radiculopathy, from November 6, 2009. At that time, the Board further expanded the appeal to include the matter of , of the Veteran's entitlement to a TDIU due to service-connected lumbar spine disability and radiculopathy, to include on an extra-schedular basis (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)). The Board then remanded these matters, along with the claims for higher ratings for lumbar spine disability, prior to and since November 9, 2009 (characterized in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999) and AB v. Brown, 6 Vet. App. 35, 38 (1993)),to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC denied each claim (as reflected in an October 2011 SSOC) and returned these matters to the Board for further appellate consideration.
In April 2012, the Board denied an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to November 9, 2009. The matters as to a rating in excess of 30 percent for degenerative disc disease of the lumbar spine, from November 9, 2009, a rating in excess of 20 percent for right lower extremity radiculopathy, and entitlement to a TDIU, were again remanded to the RO via the AMC for further action, to include additional development of the evidence.
In a July 2012 rating decision, the AMC, inter alia, awarded service connection for radiculopathy of the left lower extremity and assigned a 20 percent rating, effective November 9, 2009, as well as awarded the Veteran a TDIU, effective November 9, 2009. In September 2012, the Veteran filed a statement indicating his disagreement with the effective date assigned for the award of service connection for both the right and left lower extremity radiculopathy, and for the TDIU.
Although the Veteran was awarded a TDIU, effective November 9, 2009, the matter of whether. pertinent to this appeal, a TDIU was warranted prior to November 9, 2009 remains for consideration. The Board also notes that, as to the Veteran's rating for left lower extremity radiculopathy, the Veteran indeed filed a statement in September 2012 indicating disagreement with assigned the effective date for the award of compensation for the disability (as addressed in the remand, below), but he did not give any indication that he wishes to challenge the 20 percent rating assigned.
The Board's decision addressing the claim for a rating in excess of 30 percent for the Veteran's lumbar spine disability, is set forth below. The claims for higher rating for right lower extremity radiculopathy, for a TDIU prior to November 9, 2009, and for an earlier effective date for the grant of service connection and aware of compensation for left lower extremity radiculopathy prior to November 9, 2009, are addressed in the remand following the order; those matters are being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required.
FINDINGS OF FACT
1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.
2. Since November 9, 2009, the Veteran's degenerative disc disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; no ankylosis of any portion of the spine, no associated neurological impairment other than radiculopathy of each lower extremity (for which compensation has already been awarded, and which are not the subject of this decision), or incapacitating episodes due to intervertebral disc syndrome (IVDS) has been shown.
CONCLUSION OF LAW
Resolving all reasonable doubt in the Veteran's favor, the criteria for a 40 percent, but no higher, rating for degenerative disc disease of the lumbar spine, from November 9, 2009, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating IVDS on the Basis of Incapacitating Episodes (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012).
Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.
In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.
The Board recognizes that the only period of appeal remaining related to the Veteran's service-connected lumbar spine is the period since November 9, 2009; however, the appeal stems from the initial award of service connection for the disability. After the award of service connection, and the Veteran's disagreement with the initial rating assigned, the May 2006 SOC set forth the criteria for higher ratings for lumbar spine disability (the timing and form of which suffices, in part, for Dingess/Hartman). Also, in October 2008, May 2010, January 2011, and April 2012 post-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating; what information and evidence must be submitted by the appellant; and what information and evidence would be obtained by VA. This notice also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.
After issuance of the above-described notice, and opportunity for the Veteran to respond, the August 2010, October 2011 and July 2012 SSOCs reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA outpatient treatment records, private treatment records, records from the Social Security Administration (SSA), and the reports of several VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's August 2008 Board hearing, along with various written statements provided by the Veteran, and his friends, relatives, and representative on his behalf. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required.
Regarding the latter point, the Board is satisfied that the RO has substantially complied with its December 2010 and April 2012 remand directives as they pertain to the claim herein decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AMC secured additional VA treatment records, and afforded the Veteran the opportunity to submit any additional evidence pertinent to the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).
In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Factual Background
The Board again notes that the Veteran's claim stem from his initial grant of service connection. Nonetheless, the period of appeal related to the Veteran's disability prior to November 9, 2009, was decided by the Board in April 2012. This decision relates to the Veteran's degenerative disc disease of the lumbar spine since November 9, 2009. Thus, evidence dating from November 9, 2009, only, is summarized below.
VA outpatient records dated from November 2009 through the present primarily show prescriptions, including those for the back, as well as treatment for the Veteran's prostate cancer. November 2009 private EMG study does report abnormal results with electrodiagnostic evidence of mild chronic L5-S1 radiculopathy on the right.
The Veteran underwent VA medical examination of the spine and associated neurological impairment in November 2009. At that time, the Veteran reported daily pain in the lower back, which, according to the Veteran, flared daily to a severity rating of 10 out of 10. He reported that he used a cane and a brace, and that his pain radiates down the right leg with numbness, stinging and burning. The Veteran also reported flares "a couple times per month" to a level of 10 out of 10. He reported that it interferes with work, his activities of daily living, and his sleep. The Veteran reported that he has to seek emergency treatment for an injection to relieve back pain several times per year, and that when he receives these injections, bed rest is required for a minimum of 24 hours. Thus, the examiner reported that the Veteran has had incapacitating episodes for a total duration of at least two weeks, but less than four weeks. The Board notes, however, that there is no indication here that the bedrest was prescribed by a physician.
Physical examination in November 2009 revealed good muscle strength of the bilateral lower extremities, no muscle wasting, and no clinical evidence of foot drop. The lumbar spine was noted to be tender to percussion with guarding severe enough to render the Veteran with antalgic gait. Range of motion of the lumbar spine was recorded as from 0 degrees to 30 degrees on forward flexion, with pain at 30 degrees. Following three repeats, the Veteran continued to have forward flexion to 30 degrees. The examiner diagnosed the Veteran as having significant multilevel degenerative disc disease of the lumbosacral spine with right radiculopathy, which was reported as severe, rendering the Veteran unable to maintain gainful employment.
On VA examination in January 2011, the Veteran reported severe, constant, daily pain, again reported to radiate to the right leg and ankle. He reported at this time that he was chronically incapacitated on a daily basis for the prior twelve months and that he lays in his recliner. The Veteran also specifically reported that this was not due to a physician's order for bedrest, as he did not seek medical treatment for this, and he indicated, "I don't need no doctor to tell me that I am incapacitated." The examiner reported that the Veteran would not be more specific. As to symptoms, the Veteran reported spasms, tenderness, weakness and painful motion. At the time of this examination, the Veteran was reported to have forward flexion to 15 degrees, with objective evidence of pain following repetitive motion, but no additional limitation after three repetitions. Sensory examination revealed abnormality in the L2 distribution of the right lower extremity with decreased sensation to light touch. This examiner again assessed multilevel lumbar degenerative disc disease with low back pain.
In May 2012, the Veteran underwent his most recent VA examination. At this time, the Veteran's diagnoses were confirmed as multilevel lumbar degenerative disc disease, lumbar spinal stenosis, and chronic L5-S1, L3-4 radiculopathy of the right and left lower extremities. The Veteran again reported flare-ups, but at this time he described them with more particularity. He reported that when he sits for a long time, or tries to stand awhile, he has bad back pain and both of his legs start hurting. Range of motion was again measured and forward flexion at this time was limited to 10 degrees with pain starting at 10 degrees. No additional loss of motion was found after repetitive testing. The examination report reflects no indication of any ankylosis. Functional limitation was described as less movement than normal, weakened movement, excess fatigability, pain on movement and interference with sitting, standing and/or weight-bearing. The examiner found that the Veteran did not have localized tenderness or guarding or muscle spasm. The May 2012 examiner also confirmed the existence of Intervertebral Disc Syndrome, but reported that the Veteran had no incapacitating episodes within the prior year.
III. Analysis
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as in this case, the question for consideration is entitlement to a higher rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
As the only period remaining for the Board's adjudication is the period from since November 9, 2009.
The ratings for the Veteran's IVDS have been assigned under Diagnostic Code 5343,for IVDS. See 38 C.F.R. § 4.However, under the current rating schedule, IVDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (to include consideration of separate ratings for orthopedic and neurological manifestations), or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.
Under the General Rating Formula, the 30 percent rating presently assigned is assignable where forward flexion of the cervical spine is 15 degrees or less; or, when there is favorable ankylosis of the entire cervical spine. A higher, 40 percent, rating is assignable with evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For a 50 percent rating, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. And, for a 100 percent rating, there must be unfavorable ankylosis of the entire spine. See 38 C.F.R.§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243).
Also, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating service-connected spine disability. The Board notes that, in this case, the Veteran is presently receiving separate neurological ratings for his service-connected right and left lower extremity radiculopathy. These neurological issues are discussed in the remand, below, and will not be further discussed in this decision. The analysis below is limited to the orthopedic aspect of the Veteran's lumbar spine disability.
The Formula for Rating IVDS Based on Incapacitating Episodes does not provide for a 30 percent rating. However, the next higher, 40 percent, rating requires incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of this Formula, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R.§ 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).
The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).
Considering the pertinent evidence in light of the applicable criteria, the Board finds that, for the period since November 9, 2009, a rating of 40 percent, but no more, for the Veteran's service-connected lumbar spine disability is warranted.
First, notwithstanding the Veteran's own assertions, the above-cited medical evidence for this time period does not reflect that bed rest was prescribed by a physician at any time since November 9, 2009. In fact, in the Veteran's reports, he himself noted that he had not sought medical treatment, or been prescribed bedrest, by any physician. And at the most recent VA examination, the examiner specifically reported that he had not had any incapacitating episodes in the prior year. Thus, incapacitating episodes for a total period of at least 4 weeks in the last 12 months, as defined by VA regulation, have not been present. A 40 percent rating is, therefore, not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes.
However, the medical evidence does support a finding that the Veteran's lumbar spine disability has been manifested by forward flexion of 30 degrees or less each time it was measured during this period of the appeal. In particular, in November 2009, the Veteran's forward flexion was reported as from 0 to 30 degrees with pain beginning at 30 degrees. In January 2011, VA examination showed further limitation in that forward flexion was noted from 0 (on extension) to 15 degrees with pain, although no additional limitation was reported following repetitive movement. And, in May 2012, his forward flexion was recorded as from 0 to 10 degrees, with pain at 10 degrees and no additional limitation after repetitive testing.
The above-described evidence indicates that, since the November 9, 2009, VA examination, the Veteran's forward flexion has been limited to 30 degrees or less. The DeLuca factors were considered and pain on motion was noted, although it was not noted to further limit the function of the spine beyond that which the range of motion testing revealed. As indicated, the criteria under the General Rating Formula are applied with or without symptoms such as pain, and during the examination the Veteran was able to accomplish the range of motion indicated above. The Board also notes that, while objective pain on motion was found on examination, as was functional limitation described as weakened movement and excess fatigability, the VA examiners did not suggest that weakness, incoordination, lack of endurance, or fatigue on repetition actually further limit the Veteran's lumbar spine beyond that which a 40 percent rating establishes. In short, a 40 percent rating, but no more, adequately compensates the Veteran for his pain, and other DeLuca factors provide no basis for assignment of any higher rating.
The Board further notes that, at no time since November 9, 2009, does the evidence suggest that the Veteran's lumbar spine disability has been manifested by any ankylosis.. While the lumbar spine range of motion is limited, and painful, no portion of the spine is shown to be ankylosed. Thus, a rating higher than 40 percent under the General Rating Formula for Disease and Injuries of the Spine is not warranted.
A rating greater than 40 percent for the lumbar spine also is not assignable under any other provision of VA's rating schedule . As regards Note 1 of the General Rating Formula, the Veteran is not shown to have any associated neurological impairment other than radiculopathyof each lower extremity (for which compensation has already been awarded, and which are not the subject of this decision). The record also reflects, and the most recent VA examiner found, that the Veteran has not had incapacitating episodes of IVDS has been shown.
In assessing the severity of the Veteran's service-connected lumbar spine disability, the Board has considered the Veteran's assertions regarding his disability symptoms-which he is certainly competent to provide, as well as those of his friends and relatives. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings during the pertinent time period require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating at any point for the period in question.
The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point since November 9, 2009, has the Veteran's lumbar spine disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited in the May 2006 SOC).
The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008).
If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.
In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration during the period under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Also, the Board recognizes that the Veteran in this case is already receiving a separate total rating based upon individual unemployability (TDIU) due to his back disability. Thus, no further consideration is necessary as to whether additional compensation outside of the schedular rating criteria is warranted in this case.
For the foregoing reasons, the Board concludes that the record supports assignment of a 40 percent rating but no higher for degenerative disc disease of the lumbar spine. The Board has applied the benefit-of-the doubt doctrine in reaching the noted determinations, but finds that the preponderance of the evidence is against assignment of a higher rating for either disability at any other time pertinent to this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102 ;4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
A 40 percent rating for degenerative disc disease of the lumbar spine, from November 9, 2009, is granted, subject to the legal authority governing the payment of compensation benefits.
REMAND
Unfortunately the Board finds that further RO action on the claims remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters.
As noted in the Introduction above, in a July 2012 decision, the RO awarded service connection for left lower extremity radiculopathy, and assigned 20 percent ratings, effective November 9, 2009. An August 2012 letter notified the Veteran of this decision along with his rights to appeal (enclosed in a VA Form 4107) if he disagreed with the outcome. The letter specifically notified the Veteran that a notice of disagreement (NOD) must be filed within one-year. See 38 C.F.R. § 20.302 (2012).
In September 2012, the Veteran submitted a written statement indicating his disagreement with the effective date assigned for left lower extremity radiculopathy. The Board construes the September 2012 statement as a timely-filed NOD as to the left lower extremity radiculopathy. See 38 C.F.R. § 20.201, 20.200, 20.302 (2012). However, the RO has yet to issue a SOC with respect to this matter, the next step in the appellate process. See 38 C.F.R. § 19.29 (2012); Manlincon, 12 Vet. App. 238, 240-41 (1999); Holland, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.301, 20.302 (2012). On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to this matter.
The Veteran's September 2012 statement also indicated disagreement with the effective date assigned for right lower extremity radiculopathy. Service connection for this disability was awarded by way of an August 2010 rating action. Thus, the Veteran's notice of disagreement as to this issue was received more than one year following the rating action awarding service connection. This raises the issue of whether a timely notice of disagreement was filed as to the effective date for right lower extremity radiculopathy. However, this issue must be adjudicated by the RO in the first instance. In this regard, the Board notes that, for the reasons described with particularity below, the right lower extremity radiculopathy issue is inextricably intertwined with the earlier effective date issue on appeal. Thus, the appropriate action for the sake of clarity and to maintain cohesion among the Veteran's back-related claims, is to remand, rather than refer, the timeliness issue for the appropriate action by the RO.
As to the perfected issue of entitlement to an increased rating for right lower extremity radiculopathy, the Board notes that at present, the rating assigned for the radiculopathy is effective November 9, 2009. However, with earlier effective date issues pending, the timeframe for determining the appropriate rating for right lower extremity radiculopathy may be broadened. However, under the circumstances of this case, the Board finds that the matter of entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is, effectively, inextricably intertwined with the issue of whether an earlier effective date is warranted for left lower extremity radiculopathy, for which an appeal has not yet been perfected (see Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).
Also, the Board points out that the matter of a TDIU was previously before the Board. As noted in the Introduction, above, during the course of the remand development, the RO granted the TDIU, effective November 9, 2009. The issue of whether a TDIU is warranted prior to November 9, 2009, remains on appeal. At this time, a review of the record reveals that the Veteran was assigned a 10 percent rating for his lumbar spine disability prior to November 9, 2009. Thus, the matter of a TDIU must be considered on an extra-schedular basis. See 38 C.F.R. § 4.16 (2012). However, under the circumstances of this case, the Board finds that the matter of TDIU prior to November 9, 2009, is also, effectively, inextricably intertwined with the issue of whether an earlier effective date is warranted for left lower extremity radiculopathy, for which an appeal has not yet been perfected. (see Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue).
Hence, Board action on both entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, and entitlement to a TDIU prior to November 9, 2009, would be premature, at this juncture. In the event that the Veteran perfects an appeal as to the effective date issue(s), and such earlier effective date granted, the timeframe for considering the right lower extremity radiculopathy would change, as would the disabilities for which the Veteran could be considered unemployable. Thus, the evidence for consideration would change.
However, if the Veteran does not perfect an appeal as to the matter of an earlier effective date for the left lower extremity radiculopathy, then the matters of entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, and entitlement to a TDIU prior to November 9, 2009, remain on appeal, and should be returned to the Board for further appellate consideration.
Accordingly, to give the Veteran every consideration in connection with the instant appeal, and in the interest of judicial economy, this matter is hereby REMANDED to the RO, via the AMC, for the following action:
1. The RO should furnish to the Veteran and his representative an SOC with respect to the issue of entitlement to an earlier effective date for left lower extremity radiculopathy, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal to perfect an appeal of this issue.
The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-for this claim, within 60 days of the issuance of the SOC.
2. The RO should adjudicate the issue of entitlement to an earlier effective date for right lower extremity radiculopathy, to include a determination as to whether a timely NOD was received. If the RO's determination on that issue is adverse to the Veteran, the RO should furnish to the Veteran and his representative notice of the denial of the claim, and afford them the appropriate opportunity to perfect an appeal as to that issue.
3 In order to avoid piecemeal development of the Veteran's claims, the RO should not return the claims file to the Board until after the Veteran perfects appeal(s) as to any above-referenced effective date claim(s), or the time period for doing so expires, whichever occurs first.
The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs